Book Review: The Brethren

Reading Bob Woodward and Scott Armstrong’s revealing 1979 book, The Brethren: Inside the Supreme Court, must surely be what it would be like to read the script treatment for 1957’s all-time great film, 12 Angry Men, but instead of jurors, it’s the nine Justices of the Supreme Court deciding the Law of the Land.

On one hand, Woodward’s book detailing seven terms of the Burger Court from 1969 to 1975 — an inside look into what is still nearly 50 years later the most legendarily insular, protected, and shielded institution in American society, often to the chagrin of politicians, the media, and the public alike — felt like the manifestation of the image the Court seeks to project: That of dignified men wisely, deftly considering the law, counseling their clerks, and trying to persuade their fellow Justices onto their side (for the vote), even hotly debating footnotes in an Opinion (or dissent), all of which is something that should be the envy of the world with its example of a civil judicial system (one that we ought not taken for granted relative to world history).

And yet, on the other hand, what makes Woodward’s book so salacious, and certainly controversial among the ruling class, I would venture an estimation, the legal community, is that there is also the apparent fact that the nine Justices routinely vote randomly, capriciously, and with political and personal motives in mind, and of course, with the “image” of the Court in mind, too; and much like today’s Court, they often will judicially “punt” on getting at the Constitutional meat of a question in favor of the easier-to-decide technicality of the thing. Worse yet, sometimes it seems as if the Justices, like Thurgood Marshall, for example (at least in how the book paints him), seem as if they are the front-facing Justice, but the actual work is being done by their clerks. The clerks have a lot of behind-the-scenes power to sway “their” Justice, and of course, to write the various memos, briefs, opinions, dissents, concurrents, and so on.

And as much as I admire Justice William Douglas for his so-called “libertarian” loner streak, for caring about defendants, opposing the death penalty, and so on (he has a great line, which I forget the context of, where he said about the Justices in a case, “Each of us is sovereign in his own right. Each arrived on his own. Each is beholden to no one.” As an ideal of the Court, I dig it), he also was emblematic of one of the public’s (rightful) concerns and irritation with the Supreme Court: lifetime appointments, and particularly, a Justice’s unwillingness to let go of power. Douglas embarrassingly stayed on far too long after suffering a stroke, and even after technically retiring, finally, he still tried to be involved in the Court’s affairs. It was honestly sad to read about.

Both of those summations of the court, positive and negative affirming, and as painstakingly detailed in the book through the tumultuous Nixon and latter Vietnam years, with the so-called Nixon Justices, and the withering and chipping away at the Earl Warren Court and the declining influence of the liberal Justices, are true, of course. Because I do think the Justices take their duty seriously, in good faith, do care about the legal issues, and do get into the thicket of trying to rally other Justices to their legal concerns (there is far more deliberation going on than I imagine there to be going in the so-called “World’s Greatest Deliberative Body”), but I also think they are human, which means being as deeply flawed as humans are, and existing within the same political milieu as the other two branches of government. I do think, however, that they are the last bastion of seriousness among those three branches. While we cannot, and I do not, always agree with their decisions, or lack of decisions as it were, I do consider them the last serious, truly credible institution in American politics because of their attempt at being above the fray and actually deliberating.

I’ve always been interested in the courts and particularly the Supreme Court. Sometimes I think if I had more of an aptitude for it, I would have loved, or still would love, to go to law school and become a public defender, and join up with the Innocence Project or the ACLU. Shout-out to the ALCU, an organization I’ve long admired for its ballsiness. Case-in-point, a case came before the Court in whether to rule a man’s shirt that said, “Fuck the Draft” was protected First Amendment speech or an obscenity. The man’s lawyer was an ACLU lawyer, Melville Nimmer, who said he thought the case would be lost if he didn’t at least say “fuck” one time in oral arguments. Good on you, Nimmer. The Justices were cowardly and referred to it as “that word” when discussing the case. (Nimmer and his client won the case.)

Anyhow, as I was saying, I like the law! One of my absolute favorite things to do is research and then synthesize that research. Aside from that, the reason the Supreme Court fascinates me so much is because they are the Law of the Land, the arbiters of what is constitutional or not, and (hopefully, in the best of circumstances) preventing governmental abuses. Unfortunately, as is the case now and then, too many Justices are deferential not just to the government writ large, but specifically to the executive branch. Both the legislative and judicial branches have acquiesced far too much to the executive that to say we have “co-equal branches” of government is charitable at best (not that that is a fitting conception of our system, anyway, as theoretically, Congress is by far the most powerful branch, if their power is properly wielded).

Nonetheless, this was a particularly interesting time to read about the Supreme Court because their decisions and ruminations dealt with topics both salient then, and even still now including: the death penalty, segregation (both with respect to busing and schools), the treatment of the mentally ill, obscenity cases, First Amendment cases (pertaining often to the Vietnam War, protest, and the aforementioned obscenity cases), sex discrimination, and of course, three of the biggest ones: Roe v. Wade, the Pentagon Papers, and the Nixon Watergate tapes.

What a time! And as I realized what time the book would be covering, I was surprised that a Court “packed” with Nixon Justices would be the same Court handing down the Roe v. Wade decision. Even then, though, the precedent was always on shaky ground, with its appeal to privacy, and interestingly, the author of the opinion, Justice Harry Blackmun, orienting the legal framework more around the rights of doctors and “state’s rights.” I put scare quotes around state’s rights because it’s a ridiculous idea. States don’t have rights. People have rights.

I should note before moving on, the reason the book is named The Brethren is because that’s how the Justices addressed each other in their memos: Brother Blackmun, for example, or literally, the Brethren. Which is also a sign of the fact that no woman was on the court, not until President Ronald Reagan’s appointment of Sandra Day O’Connor in 1981. The issue comes up a couple of times, with Nixon considering it, then Ford, but it never comes to pass. Even down to the level of the clerks, the Justices seem reluctant to include female clerks, and in particular, Chief Justice Warren Burger was pointedly hostile to the notion of it. He said he would “never hire a woman clerk,” and that a female clerk when he was on the Court of Appeals didn’t work out; “A woman would have to leave work at 6 p.m. to go home and cook dinner for her husband,” he said. Eek. I would love a book like this covering O’Connor’s times on the Court and/or RBG to see what the “Brethren” dynamic was like with a woman in the proceedings.

Even aside from sexism, Burger does not come across well in this book. I don’t know if that’s because of Woodward’s sourcing, so it was those people’s perspective of Burger, or if Burger really is the image depicted: That of a lazy, temperamental, narcissistic man (his clerks’ memos had to be one page, with much highlighting), who would often oscillate his vote depending on which way the other Justices were going rather than any legal framework, a yes-man to the Nixon tough-on-crime agenda, and a rather ineloquent writer, who the other Justices didn’t have much respect for, and would often collaborate (or become a “cabal” as it was described at one point) against him. I will say, interestingly, the one area I do think Burger was largely right on was his aesthetic approach to the Court. When he came in as Chief Justice, he wanted to update the building and its interior. So, he instituted standardized chairs for the Justices, changing the bench from a straight bench to a curved bench, ensuring argumentation, and understanding among the Justices themselves, made more sense. And he fixed the acoustics inside the large room.

I also thought it was interesting to learn that it was Justice Potter Stewart who coined the famous line about porn/obscenity, “I know it when I see it.” But the entire issue around porn, hardcore porn, and obscenity was maddening. Because on one hand, you’d have Justices like Burger, front-facingly appalled at the images and the bad language (and so worried if a woman or child heard it!), but on the other hand, the Justices routinely had movie night: Watching the porn! Getting their kicks at the absurdity of the porn. Again, this goes to the juxtaposition, and the overlapping more to the point, between the Justices’ projected image as serious versus how they were behind closed doors.

Woodward’s book, as I mentioned, reads like a taut thriller with the best of dialogue that would make Aaron Sorkin jealous. Sometimes, like when there’s literally two (or even one!) person in a scene, Woodward’s sourcing seems obvious, but still, I enjoyed how fast and exciting the book read, or maybe I’m just a nerd. But the ways in which the Justices would jockey for position, firing off memos, trying to get the other on their side, the personal thoughts undergirding it all, and of course, the legal, moral, and philosophical questions at stake, I was riveted. (One style note that made me laugh was I guess in the 1970s, the phrase was “Middle Western” rather than “Midwesterner.”)

Even though they fall short of it, I do admire that the Justices ostensibly try to be removed from politics, to try to ensure their decision-making is “above the fray,” as it were. For example, Justice John Harlan was aghast that Burger was being decidedly political. Harlan felt that innocent persons not charged with a crime should be able to sue federal agents who violated their rights (in this case, the agents broke into, and searched, the man’s home without a warrant). Burger didn’t want the Court to open up more Court remedies for alleged law enforcement abuses. But the reasoning Burger gave Harlan also included the appearance it would give off for the Court to “tie the hands of the police” given he was appointed by Nixon.

One of the absolute most fascinating examples of how the Supreme Court works, and the nitty-and-gritty of the civil back-and-forth memo-flying legal discussion between them, was in their ability to maintain an 8-0 unanimity front of desegregation in keeping with 15 years of decisions in Swann v. Charlotte-Mecklenburg Board of Education. My recounting of it can’t do the back-and-forth justice (heh), but suffice it to say, when the decision came down on April 20, 1971, headlines across the country announced that the Court had backed busing. Reading how the Court tried to, and often did, stand up to the South and its piecemeal efforts to resist desegregation, made me admire the Justices’ efforts. Although, even then, I have to couch it some because in their professional and personal lives, the Justices treated the “help,” who were often majority black, at the Court like nobodies, and didn’t care about their working conditions. Worse, when one of the white female clerks began dating one of the black labor force members, it was frowned upon for being an interracial relationship, even though the Loving decision came down in 1967!

It’s also interesting how ingrained the idea of stare decisis is within the Court, then and now. If you watched any of the recent confirmation hearings for President Biden’s nominee (who was then confirmed) to the Supreme Court, Kentanji Brown Jackson, that was one of the issues that came up a lot: What is your opinion on stare decisis? Depending on one’s political persuasion, precedent matters a lot to you: If stare decisis is going to keep you firm on upholding Roe v. Wade or the Heller decision, as prominent examples.

Unfortunately for the Court, former president LBJ died on the same day the abortion cases were announced. Which, it’s funny to consider that given how monumental Roe v. Wade was and continues to be in the polity. Of course, right after the decision came down, the Catholic Church denounced the Supreme Court’s decision. Which led to me jotting down in my notes, “Cry me a river, Catholic Church.” At this time in the early 1970s, as we would later learn, the Church was in the midst of covering up widespread, systematic sexual abuse of children.

Another area that felt salient for what happens today is how much the Court worried about Nixon, and that he would defy any Court order they gave regarding the tapes in the Watergate investigation while also juggling their usual penchant for not wading into political issues. Like with desegregation, the Court wanted to present a unanimous front against the overreach and defiance of Nixon. All eight (Justice Rehnquist recused himself due to being close to the Watergate conspirators) did rule against Nixon. It was frustrating that Burger was … Burger, and didn’t want to do what Justice William Brennan suggested: All nine Justices should sign on to the Opinion to truly show that Nixon wasn’t above the law. Close enough. Within 16 days of the decision, Nixon resigned. But the reason it’s salient is obvious, with people worried (rightly) that at various times, Trump wouldn’t go along with dictates from the Courts or whomever else.

If you’re an observer of the law, the courts, and the Court in any way, and have not put eyeballs to this book, I think it’s crucial reading. It’s so fucking (sorry, Burger) compelling with its insights into the individual Justices, their way of thinking, the machinations of the Court, the way monumental decisions are arrived at that affect all of us, and much more. And that it was written in 1979 about court cases of the 1970s does not make it outdated in the slightest. As I’ve mentioned, there are numerous salient issues today that started then, or at least, were also addressed then.

If you’re not much into politics or the law, then I can’t imagine a book detailing the inner workings of the Supreme Court between 1969-1975, and written in 1979, would be a worthwhile endeavor to you, but, hey, you never know! If you liked Twelve Angry Men … (and if you haven’t seen that, you’re dead to me anyway).